Gaydos v. Grupe Real Estate Investors, A94A0232

• Decision Date: 02 February 1994
• Docket Number: No. A94A0232,A94A0232
• Citation: 440 S.E.2d 545,211 Ga.App. 811
• Parties: GAYDOS v. GRUPE REAL ESTATE INVESTORS et al.
• Court: Georgia Court of Appeals

Page 545

440 S.E.2d 545

211 Ga.App. 811

GAYDOS v. GRUPE REAL ESTATE INVESTORS et al.

No. A94A0232.

Court of Appeals of Georgia.

Feb. 2, 1994.

Parker & Terry, J. Steven Parker, Decatur, for appellant.

Alston & Bird, Donna P. Bergeson, Elizabeth A. Gilley, A. McCampbell Gibson, Atlanta, for appellees.

BLACKBURN, Judge.

The appellant, Sue Gaydos, commenced this action against Grupe Real Estate Investors 42 and Grupe Management Company (Grupe), seeking to recover for injuries sustained when she tripped and fell on the parking lot of the apartment complex in which she resided. The trial court granted summary judgment for Grupe, and this appeal followed.

The record shows that at approximately 1:30 p.m. on April 1, 1991, Gaydos exited her apartment and, instead of using the paved walkway to the parking lot provided for such purpose, cut across the lawn to get to her car. As she approached the sloping concrete curb of the parking lot, she was looking straight ahead, and tripped and fell when she stepped down at the curb. Although Gaydos had lived in the apartment complex for several months, she claimed that she had never traversed this route to her car prior to this incident. There also was no evidence that others had used this route to access the parking lot.

The maintenance supervisor of the apartment complex was called to the scene immediately following Gaydos' fall. He observed the sloping curb and an expansion joint from which a crack extended, but there were no holes or unevenness about the curb. The asphalt pavement of the parking lot was a little uneven where it joined the curb. He had previously inspected the parking lot for hazardous defects in March 1991, at which time he observed the crack in the concrete apron, but he had not considered it to be hazardous.

Approximately 17 months after the fall, the plaintiff's expert, a structural engineer, examined the parking lot site in question and found the crack to be 19 inches long, and three inches across at its widest point. Because both sides of the crack had deteriorated, the engineer opined that the hazardous condition would have existed in March 1991, when the maintenance supervisor inspected the parking lot. He also viewed photographs of the site taken on the day of the fall and found them to depict a trip hazard, but he did not specify the hazard. The engineer further averred that while approaching the site as Gaydos had done, the hazard would not have been visible upon ordinary inspection by a person walking in an ordinary manner.

An owner or occupier of land has a duty of exercising ordinary care to keep the premises and approaches safe for any invitees. OCGA § 51-3-1. However, an owner or occupier of land is not an insurer of an invitee's safety. Rather, the basis of an owner/occupier's liability to an invitee injured on the premises is the owner/occupier's superior knowledge of the condition that subjected the invitee to an unreasonable risk of harm. Pound v. Augusta National, 158 Ga.App. 166, 279 S.E.2d 342 (1981). On the other hand, an invitee must exercise ordinary care to avoid the consequences of any such negligence on the part of an owner/occupier, and the failure to do so bars an invitee's recovery against the owner/occupier. OCGA § 51-11-7, generally; Powell v. Woodridge Condo. Assn., 206 Ga.App. 176, 424 S.E.2d 855 (1992).

In the instant case, there was no evidence showing that either Grupe or Gaydos had actual knowledge of the alleged defect in the parking lot at the site where Gaydos fell. Gaydos contends that Grupe's constructive knowledge of the alleged defect was established by the apartment complex maintenance supervisor's inspection of the ...